Analysis On The Concept Of Indirect Criminal

Indirect Criminal is a concept adopted by the theoretic circle of criminal law in civil law system, which has been widely discussed and studied by lots of criminal lawyers in civil law counties, and even been codified in criminal statutes in some of such countries. However, it is not expressively stipulated in the penal code of China and insufficiently discussed and studied by Chinese criminal lawyers. The immaturity in the criminal theory directly causes the deficiency of relevant provisions in laws and regulations, and the chaos and inconsistency of determination in the practices of criminal justice because of the vacancy of legal basis. On the survey of related criminal law literatures written by internal and foreign criminal lawyers, it is never unanimously agreed in their opinions on this issue, which is mainly caused by the vacancy of a benchmark in the research of indirect criminal. There has not been a widely recognized, comprehensive and accurate concept of indirect criminal so far. Based on the analysis of all kinds of elements which shall be incorporated into the concept of indirect criminal proposed by internal and foreign criminal lawyers, as well as on the relevant provisions in laws of China, this article discusses and expands on the concept of indirect criminal by adopting the method of induction. This article is divided into five parts:　The first part introduces and analyzes the specific provisions on the indirect criminal in civil law system, common law system and China. It suggests that there is no room for the existence of indirect criminal not only under the provisions of current panel code of China but also from the legal interpretation of current penal code.　The second part argues the position and legal basis of indirect criminal and its existence. It holds an opinion that the indirect criminal is not a content contained in the concept of criminal when it is originated, but it complements and amends the concept of criminal with the development of criminal justice and theory. It is advisable that the legal basis of indirect criminal shall be focused on aspects of the utilizer and the utilized, which not only sticks to the principle of consolidation of subjective and objective, but also embodies the indirect criminal theory's characteristic of "instrumentalism".　The third part expands on the subjective aspect of indirect criminal, including the subject, subjective knowledge and subjective culpability. It suggests the existence of personal offender, which is a kind of limitation on the scope of indirect criminal and has an inversely proportional relationship between each other. A legal entity can also become an indirect criminal. A utilizer in the indirect criminals shall have his "own intention of offence"and cognition on the behavior of the utilized. His subjective culpability may only be intentional, including the indirect intention, thus excludes the possibility of any negligence.　The fourth part analyzes and argues the objective elements of indirect criminal, mainly including the behavior of utilization and the utilized object (the person utilized). It holds that a positive inaction can also constitute indirect criminal other than an active action. The utilized object must be another person excluding the utilizer himself or other material objects. Where the utilized is under coercion or the pure mechanical acts of the utilized is being utilized, the utilizer may also become the indirect criminal.　The fifth part lists and argues current definitions on the concept of indirect criminal. It advises that it is optimal to adopt the method of abstract summarization in creation of its concept. In a conclusion, after the above mentioned analysis on all elements of indirect criminal's concept, its definition shall be an act intentionally committed by the actor, out of his own intention of committing offence and by utilizing other persons'act, but not constitutes a joint offence with other persons.